Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

Corporate Law, Complexity and Cartography

Author(s):

The relationship between corporate law and corporate practice is complex. So too is the relationship between the different types of corporate law rules — from primary and delegated legislation, through listing rules and ASIC orders to corporate constitutions. Corporate lawyers tend to respond to this complexity and diversity by implicit understanding than by conceptual framework. This article offers one way of conceptualising the complexity of corporate law rules and their relationship to corporate practice. Drawing on Boaventura de Sousa Santos’ influential 1987 article ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, the article looks to cartography as an unexpected source of ideas to assist in understanding the shape of modern corporate law rules.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

The Multilateral Human Rights System: Systemic Challenge or Healthy Contestation?

Author(s): Jolyon Ford

This essay explores some of the parameters and merits of a putative argument that the announcement of June 19, 2018 that the United States would withdraw from the United Nations Human Rights Council might most properly be understood as but one manifestation of a wider political backlash within the US (and indeed other Western democracies) against the multilateral human rights system epitomized by the Council. There are two prongs to this argument. First, populist-nationalist political sentiment at home simultaneously fuels and is fanned by strident high-profile diplomatic critiques (or even rejections) of global bodies such as the Council. Second, the nature and force of this backlash constitutes a systemic threat to the future of the post-1945 rules-based international order, especially since it comes mostly from the superpower whose values-based rhetoric and leadership has perhaps done most to advance the global human rights agenda in the modern era.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Algorithmic Decision-Making and Legality: Public Law Dimensions

Author(s): Will Bateman

Automating the exercise of statutory powers through algorithmic decision-making carries high levels of legal risk. Fundamental public law doctrines assume that legal powers will be exercised by a particular kind of decision-making agent: one with sufficient cognitive capacities to understand the interpretative complexity of legal instruments and respond to highly dynamic environments. Public law doctrines also assume that clear reasons can be given for the exercise of public power and, by default, attribute legal responsibility for the exercise of statutory powers to a human being bearing political and social responsibility. Those doctrines provide the standards against which the legality of algorithmic decision-making in the public sector must be tested and, until they are met, lawyers should be sceptical of suggestions that statutory powers can be automated.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Law and Technology, Regulatory Law and Policy

Rethinking the Law on Shareholder-Initiated Resolutions at Company General Meetings

Author(s): Stephen Bottomley

Recent concerns about the need for improved corporate accountability raise questions about the role of shareholders in corporate governance. One aspect of these discussions is the capacity of shareholders in general meetings to propose non-binding advisory resolutions concerning governance or social matters. Since Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame in 1906, courts have held that if a company’s constitution gives directors the power of company management, shareholders cannot interfere with the exercise of that power. The Federal Court affirmed this in Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia. This paper re-examines the case law, particularly in its application to advisory resolutions, and recommends the introduction of a broad statutory authority for non-binding advisory resolutions. The paper argues that this is an important step towards improved corporate accountability and responsible shareholder engagement.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

Elected Member Influence in the United Nations Security Council

Author(s): Jeremy Farrall

This article reassesses how members of the UN Security Council exercise influence over the Council’s decision-making process, with particular focus on the ten elected members (the ‘E10’). A common understanding of Security Council dynamics accords predominance to the five permanent members (the ‘P5’), suggesting bleak prospects for the Council as a forum that promotes the voices and representation of the 188 non-permanent members. The assumption is that real power rests with the P5, while the E10 are there to make up the numbers. By articulating a richer account of Council dynamics, this article contests the conventional wisdom that P5 centrality crowds out space for the E10 to influence Council decision-making. It also shows that opportunities for influencing Council decision-making go beyond stints of elected membership. It argues that the assumed centrality of the P5 on the Council thus needs to be qualified and re-evaluated.

Read on SSRN

Centre: CIPL

Research theme: Human Rights Law and Policy, International Law, Law and Social Justice, Law, Governance and Development, Military & Security Law, Regulatory Law and Policy

Defining 'Supply Chain' for Reporting Under a Modern Slavery Act for Australia

Author(s): Jolyon Ford

Australia proposed a Modern Slavery Act based on the UK's 2015 model, requiring larger firms to report annually on steps taken to address the risk of modern slavery in their operations and supply chains. This working paper has two main arguments. First, the approach to defining (or not) ‘supply chain’ is not a mere technical drafting issue, but instead can be seen as going to the overall purpose of this regulation and as a metaphor for more general design philosophies or approaches in this sphere. Second, an Australian statute should refrain from any attempt at a statutory definition of ‘supply chains’ or any definition in ancillary regulations; however, authorities should offer reporting entities far more extensive policy guidance than the UK model has done. Aside from the generic drafting difficulty of finding a stable, commercially sensible definition, the paper explains at least three reasons why the statutory scheme should not seek to define ‘supply chains.’

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Defining 'Supply Chain' for Reporting Under a Modern Slavery Act for Australia

Author(s): Jolyon Ford

Australia proposed a Modern Slavery Act based on the UK's 2015 model, requiring larger firms to report annually on steps taken to address the risk of modern slavery in their operations and supply chains. This working paper has two main arguments. First, the approach to defining (or not) ‘supply chain’ is not a mere technical drafting issue, but instead can be seen as going to the overall purpose of this regulation and as a metaphor for more general design philosophies or approaches in this sphere. Second, an Australian statute should refrain from any attempt at a statutory definition of ‘supply chains’ or any definition in ancillary regulations; however, authorities should offer reporting entities far more extensive policy guidance than the UK model has done. Aside from the generic drafting difficulty of finding a stable, commercially sensible definition, the paper explains at least three reasons why the statutory scheme should not seek to define ‘supply chains.’

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Australian Renewable Energy Law: Carbon Lock-In or Clean Energy Transition? The Pursuit of Policy Stability and Energy Security at Higher Levels of Renewable Generation

Author(s): James Prest

This article critically analyses recent developments in Australia’s renewable energy law and policy. It identifies seven retrograde steps taken in energy and climate law in Australia in the last five years. Barriers to clean energy law - in the form of recurring narratives employed against the rise of renewable energy across Australia - are examined. Increased levels of renewable energy are portrayed by opponents as a threat to the security and reliability of electricity supply. Yet, the nation is currently experiencing a major renewable energy investment boom, supported by regional policy initiatives that are driving innovation, most recently in energy storage.

Read on SSRN

Centre:

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

The Future of Australia's Federal Renewable Energy Law

Author(s): James Prest

This article presents a critical analysis of Australia's federal renewable energy law. Its operation as a system of tradeable renewable energy certificates is briefly explained, before an analysis of the future of the Renewable Energy Target beyond 2020 is undertaken. The implications of the Federal Government's recently abandoned National Energy Guarantee and the subsequent decision no to expand or extend the Renewable Energy Target are discussed. The article presents an international comparison which demonstrates that Australia's national support for renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy is unambitious in relative terms. It argues that in several respects, Australian federal renewable energy law must be extended to address important issues that are presently receiving little legislative or political attention.

Read on SSRN

Centre:

Research theme: Environmental Law, Law, Governance and Development, Regulatory Law and Policy

Judicial Review of Administrative Action

Judicial Review of Administrative Action and Government Liability 6th Edition

Author(s): Greg Weeks, Matthew Groves, Mark Aronson

Judicial Review of Administrative Action and Government Liability Sixth Edition is one of Australia’s most respected legal texts. It became the first title in our prestigious Lawbook Library Series, because it represents definitive legal scholarship and publishing excellence in Australian law. For two decades, this work has both mapped and supported development of the law and practice of judicial review of administrative action throughout Australia. Repeatedly cited in the High Court of Australia, this landmark work remains the definitive scholarly work for judicial officers, practitioners and students alike.

The sixth edition includes an entirely new chapter on what is now a substantial body of special statutory and common law rules that apply to government liability in contract, tort, and restitution. Numerous decisions of the High Court and the Federal Court, in particular, are producing a discernible relaxation of the traditional grounds of review, and a more expansive approach to the interpretation of regulatory statutes. In addition, the Full Court of the Federal Court has announced a simplification of the criteria for appeals limited to questions of law, overturning literally dozens of earlier precedents.

In the Sixth Edition, Mark Aronson and Matthew Groves are joined by Greg Weeks formerly from the University of New South Wales, and now at the Australian National University. Their combined expertise ensures that this pre-eminent title continues to provide a fresh and authoritative treatment of judicial review of administrative actions in Australia, and an invaluable guide to the special problems relating to government liability in tort, contract and equity.

Purchase your copy online

Centre: CIPL

Research theme: Administrative Law, Regulatory Law and Policy

Crown and Sword

Crown and Sword: Executive power and the use of force by the Australian Defence Force

Author(s):

The Australian Defence Force, together with military forces from a number of western democracies, have for some years been seeking out and killing Islamic militants in Iraq, Syria and Afghanistan, detaining asylum seekers for periods at sea or running the judicial systems of failed states. It has also been ready to conduct internal security operations at home. The domestic legal authority cited for this is often the poorly understood concept of executive power, which is power that derives from executive and not parliamentary authority. In an age of legality where parliamentary statutes govern action by public officials in the finest detail, it is striking that these extreme exercises of the use of force often rely upon an elusive legal basis. This book seeks to find the limits to the exercise of this extraordinary power.

Free download or order a printed copy

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Military & Security Law, Regulatory Law and Policy

Peer Review and the Global Anti-Corruption Conventions: Context, Theory and Practice

Author(s):

This article analyses the international anti-corruption framework and the peer review monitoring process. Peer review is described as the “systematic examination and assessment of the performance of a state by other states, with the ultimate goal of helping the reviewed state … comply with established standards and principles.” However, despite its growing importance as a regulatory process, peer review has not been comprehensively analysed, resulting in a “literature famine” on its nature and operations. Indeed, to date, there has been very limited academic discussion on peer review. As a result, one aim of this article is to contribute to a stronger understanding of its process. While our focus is on peer review in the anti-corruption context, where possible, universal characteristics of the process are discussed. The second objective of this article is to consider the merits of the peer review process in incentivising states to take action against corruption. Peer review is the mechanism for evaluation of the United Nations Convention against Corruption (UNCAC), the Organisation for Economic Cooperation and Development (OECD) under its Anti-bribery Convention and the African Union’s (AU) good governance objectives under good governance objectives under the Peer Review Mechanism (APRM). Whilst acknowledging the criticisms of peer review, this article argues that peer review has been successful in particular contexts in increasing state compliance with these international instruments. In particular, peer review has contributed to the acceptance of anti-corruption norms and focused on the need for all countries to regulate corruption at the national level.

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Administrative Law, Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

Empty Rituals or Workable Models? Towards a Business and Human Rights Treaty

Author(s): Jolyon Ford

In this article, we do not seek to engage directly with ongoing discussions regarding the potential merits, and conversely the risks, of seeking to conclude a Business and Human Rights (BHR) treaty at all. Instead, our aim is to promote a greater focus, in the context of the BHR treaty debate, on regulatory effectiveness. That is, we believe that proposals for a BHR treaty should be assessed in terms of their likely efficacy, relative to other available forms of regulatory intervention, in advancing effective enjoyment of human rights in the business context. Whereas many contributions to the BHR treaty debate so far have explicitly or implicitly advocated one or other treaty model they have side-stepped the difficult question of how practically effective these models might be in influencing the conduct of duty bearers.

Read on SSRN

Centre: CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Delegated Legislation in Australia

Delegated Legislation in Australia, 5th edition

Editor(s): Dennis Pearce, Stephen Argument

Now in its fifth edition, Delegated Legislation in Australia provides updated and detailed coverage of all aspects of subordinate legislation, and is an essential reference for legislators, public officials at all levels of government, judicial officers and lawyers. It is the latest addition to the LexisNexis Black and Silver series.

Legislation made by various government and other bodies under the authority of an Act of Parliament far exceeds in volume the legislation made by Parliament in the form of statutes. Delegated Legislation in Australia includes a comprehensive overview of why and how delegated legislation is used to impose obligations on both citizens and business, and in what forms such legislation takes. Commentary is provided for each Australian jurisdiction as to the means used by Parliament to review the content of the legislation, and assess and compare the performance of each parliament.

Order your copy online

Centre: CIPL

Research theme: Administrative Law, Regulatory Law and Policy

Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights

Author(s):

This paper examines the growth of transnational governance, and what it means for business lawyers advising multinational corporate clients. The term “governance” incorporates the network of actors, instruments and mechanisms that now govern transnational corporations, separate from the nation state. It is reasonable to expect that lawyers play an important role in advising business clients on how to effectively operate within this system. Indeed, many transnational legal instruments are intended to enhance clients’ business goals by enabling them to engage more efficiently in cross-border commerce. Other forms of regulation, such as human rights regulation, purports to impose requirements on companies that go beyond what is necessary to enhance cross-border commerce.

In this paper we discuss the transnational governance regime that has arisen to address the adverse human rights impacts of business activities. We focus in particular on the United Nations (UN) Guiding Principles on Business and Human Rights, which were adopted by the UN Human Rights Council in 2011. We ask what if any role is there for lawyers in fostering acknowledgment and fulfilment of these responsibilities among clients? Is the duty to respect human rights a “legal” obligation in any sense? If a lawyer does provide advice, should it encompass only legal risks to the company that fall within the lawyer’s traditionally defined specialized expertise? Or should it go beyond that to include other concerns?

Read on SSRN

Centre: CCL, CIPL, LGDI

Research theme: Law and Psychology, Legal Education, Private Law, Regulatory Law and Policy, The Legal Profession

The Law of Deliberative Democracy

The Law of Deliberative Democracy

Author(s): Ron Levy, Graeme Orr,

Laws have colonised most of the corners of political practice, and now substantially determine the process and even the product of democracy. Yet analysis of these laws of politics has been hobbled by a limited set of theories about politics. Largely absent is the perspective of deliberative democracy – a rising theme in political studies that seeks a more rational, cooperative, informed, and truly democratic politics. Legal and political scholarship often view each other in reductive terms. This book breaks through such caricatures to provide the first full-length examination of whether and how the law of politics can match deliberative democratic ideals.

Order your copy online.

Centre: DGAL

Research theme: Legal Theory, Regulatory Law and Policy

Being Well in the Law: A Guide for Lawyers

Author(s): Stephen Tang, Tony Foley, Vivien Holmes, Colin James

Being Well in the Law is a toolkit for lawyers. It has been well informed by the input of experts from the Australian National University and Sydney University, as well as a range of other experts. It draws heavily on multidisciplinary knowledge embracing mindfulness and meditation, and evokes ideas to help us switch off from other thoughts and focus only on the moment, helping to alleviate anxiety.

Read on SSRN

Centre: CIPL, PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

Gender Quotas on Boards -- Is it Time for Australia to Lean in?

Author(s): Peta Spender

This article examines whether Australia should introduce a gender quota on ASX 200 boards. Although existing institutional arrangements favour voluntary initiatives, Australia may be at a critical juncture where two factors — the public, pragmatic nature of the statutory regulation of corporations in Australia and the current salience of gender as a political issue — may favour the introduction of a quota. In particular, Australian policy-makers may be amenable to change by observing initiatives from other jurisdictions. It is argued that we should maintain a healthy scepticism about functionalist arguments such as the business case for women on boards. Rather, we should invoke enduring justifications such as equality, parity and democratic legitimacy to support a quota. The optimal design of an Australian gender board quota will be also be explored.

Read on SSRN

Centre: CCL

Research theme: Law and Gender, Law and Social Justice, Private Law, Regulatory Law and Policy, The Legal Profession

The Practice of Law and the Intolerance of Certainty

Author(s): Stephen Tang, Tony Foley

This paper seeks to challenge a lingering view that law is and should be intolerant of uncertainty and must strive for certainty. Although inconsistent with the embedded uncertainty and ambiguity of law as a system, there is still an implicitly accepted view that the practice of law, and the role of lawyers, is to make determinate the indeterminate, to use legal rules to remove the uncertainty from human existence. This paper provides a preliminary sketch of an alternative and humanising epistemology of law in practice, one that embraces and makes adaptive use of uncertainty at the level of psychological experience, rather than just at a conceptual or institutional level. It focuses its attention on the preparation for practice of new lawyers and their lived experience of uncertainty as one of the defining aspects of their transition from law student. In the process, the paper challenges the conventional perceptions that thinking like a lawyer involves an additive set of skills sitting above and beyond those of ordinary thinking. Learning to think like a lawyer is more often subtractive, leaving out the messy world and in the process leaving out the messiness of uncertainty. As an alternative, the paper examines what many good lawyers have taught themselves: the importance of embracing uncertainty, complexity and acquiring a healthy intolerance of certainty. It suggests these skills and habits would be better taught and learned in advance of practice.

Read on SSRN

Centre: PEARL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

Pages

Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team